Carr v Nicholls [2007] NSWDC 160

New South Wales District Court

CITATION: Carr v Nicholls [2007] NSWDC 160

HEARING DATE(S): 21 and 22 May 2007

JUDGMENT DATE: 25 May 2007

JURISDICTION: District Court - Civil Jurisdiction (At Wagga Wagga)

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Judgment for the plaintiff in the sum of $759,733.26; Defendant to pay the plaintiff's costs, on the ordinary basis up to 17 November 2006, and thereafter on an indemnity basis

CATCHWORDS: Negligence - motor accident on the road to Gundagai - plaintiff passenger - breach of duty admitted but contributory negligence pleaded, alleging a failure to wear a seatbelt - seatbelt removed by defendant - Damages - no issue of principle, and case turned on its own facts

LEGISLATION CITED: Motor Accidents Compensation Act 1999

PARTIES: Carissa May Carr (Plaintiff) Aaron William Nicholls (Defendant)

FILE NUMBER(S): 49/06 (Wagga Wagga)

COUNSEL: Mr I Roberts SC with Mr R Foord (Plaintiff) Mr A Black (Defendant)

SOLICITORS: Denniston & Day (Plaintiff) TL Lawyers (Defendant)

JUDGMENT

Introduction 1. Ms Carr was injured in a motor accident at about 9.15pm on 29 November 2003 when she was travelling as a passenger in a Toyota landcruiser utility driven by Mr Nicholls, the defendant. The accident occurred when the utility overturned on a right hand bend on Willis Road, Gundagai, rolled and came to rest on its roof. The road was a dirt road and Mr Nicholls failed to maintain control of the vehicle. It is alleged he was travelling at an excessive speed.

2. These proceedings were commenced on behalf of Ms Carr alleging negligence by Mr Nicholls and claiming damages. Breach of duty is admitted, but contributory negligence is pleaded. It is alleged that Ms Carr was not wearing a seat belt.